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Headings and lost opportunities.

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Attorneys sometimes italicize headings, bold them, underline them, or enlarge the font. But virtually everyone tries to distinguish the appearance of headings. Why? Because we all recognize the unique value of headings.

Headings create a semantic context for the reader. Psychologists and linguists explain that readers comprehend and remember better when writers use headings that trigger focus at the earliest possible moment.

With this potential, all legal writers would naturally spend a lot of time thinking about how to focus readers through each heading, right?

Wrong.

Consider how Supreme Court justices use headings, dividing their opinions into sections designated by Roman numerals. Defenders of this practice typically explain that the content should be readily apparent. For example, when readers come to "I," they should immediately recognize that they are about to read a statement of background facts. Or when coming to "IV" and spotting a mention of double jeopardy in the opening sentence, readers should recognize that the judge is about to discuss a double jeopardy claim.

But why use headings at all if they serve no purpose? Skilled writers should use headings when they serve the reader, and few readers are served by Roman numerals unaccompanied by text. On the other hand, textual headings can effectively aid readers by furnishing the outline for the analysis.

Headings can serve three purposes:

  1. to provide contextual information useful to understanding the section,
  2. to identify the function of the section, and
  3. to communicate organizational information about the section.

Fulfilling these purposes can facilitate readers' memories of the text and shape their perception.

Writers can provide contextual information through a topic, such as "the Claim of Double Jeopardy." Or the section's function can be identified through a one-word heading like "Background" or "Discussion." And organizational information can be supplied through subheadings. Though these methods ease the readers' burden, they shed little light on the point to be driven home in the section. To shine a light on that point, use a heading expressing your core point.

For example, think about a functional heading like "Background." This heading orients the reader to the nature of what is to come: the basic historical facts underlying the case. Orienting the reader to the topic serves to facilitate recall. But a one-word heading like "Background" does not tell the reader which facts are important. So tell the reader. If the reader needs to know that the victim of an armed assault was the initial aggressor, say so through a heading: "Joseph attacked John, who reacted in self-defense." A one-word heading like "Background" creates unnecessary work for readers, telling them that they'll need to look elsewhere for the key takeaways.

Use your heading to tell readers the point of each section. The collection of points will serve as a guidepost for readers, breaking up your information into easily digestible chunks. These chunks become identified with the headings, allowing readers to absorb the material incrementally, enhancing recall.

With headings, consider how to maximize their usefulness. A heading signals a topical shift, focusing the reader on the text that immediately follows. The process of refocusing the reader enhances recall because readers generally remember what comes immediately after the heading better than what comes later.

So next time you insert a heading, think about it. Don't just italicize or enlarge the font. Take advantage of the opportunity by focusing your readers on what you want them to understand and remember.

NEXT: Today in Supreme Court History: May 21, 2007

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  1. Also: don’t leave a heading at the very bottom of the page with the section starting on the next.

    1. Alas, a hazard of Word, where a properly placed heading gets put at the bottom of the previous page when printed out by a paralegal who is using a slightly different version or whose print settings are different. That didn’t used to happen.

      1. Not if the heading’s style correctly has checked “keep with next.”

        1. OK, if you want to play the Word game and create a style for every aspect of the brief. Did not used to be necessary.

          1. Whatever you use to create a new brief (whether it’s a template or something from your case management software) should include the styles you want for the new document, those styles should Include headings, and the headings style should use “keep lines together” and “Keep with next”.

            1. Very complicated. Didn’t used to be necessary.

              1. It’s not remotely complicated (in fact, it’s by far the simplest way to assure consistency across your written work product), and it’s worked this way since at least Word 2000.

      2. It still doesn’t happen if you take the 2 seconds necessary to configure your “keep with next” settings right.

        1. It’s fine until someone tries to print it out on another machine.

          1. Sure, and with a couple mouse clicks, it’s also fine when someone tries to print it out on another machine.

    2. These complaints about Word are puzzling to those of us who still use WordPerfect, which continues to be the easier of the two to use.

  2. I prefer not to damage my credibility by putting tendentious headings on my statement of facts. Make the factual section as dry and objective sounding as possible. In the argument section, that’s when you argue, and make your headings argumentative.

    1. Why would you try to make your brief tedious and boring to read? By the time the reader gets to your Clarence Darrow moment, they’ll be annoyed and think less of your side. And the argument will lose its effectiveness because they won’t remember the facts that it is based upon.

      I want the judge reaching my argument to be engaged and subconsciously cheering for my side to win, regardless of what the law says. That the law is on my side only helps her reach that conclusion.

      I’m not saying you should be salacious or oversell the facts. But even dry topics can be written in a way to make them entertaining and memorable. That’s basically how The Economist and the New Yorker still exist.

      1. “Dry” doesn’t mean “boring” or “tedious”.

        You will bring up the facts again during the argument sections. My point is that if you present the facts in an obviously biased manner, it makes your argument less convincing.

    2. I agree, somewhat.

      The headings of an appellate brief end up in the Table of Contents, which is literally at the very front of the brief. If a court sees the table of contents and immediately sees a bunch of argumentative, spin-ny headings, you can lose the court before it reads a word of the brief text.

      You CAN use headings to call attention to favorable facts, though. E.g., in a contract case where your client argues that the contract was never formed as a defense:

      I. STATEMENT OF FACTS
      A. The Parties
      B. The Parties Start Negotiation of a License Agreement
      C. The Parties Never Reach Agreement on Several Important Terms

      Now “C” is a bit argumentative. But it isn’t blatantly so, and it signals to the Court that the facts you really care about are the terms that weren’t agreed to.

  3. In a brief with a table of contents, the headings also serve as an outline of the argument in the brief. That is especially significant at the trial court level, when the cover page bears the caption as well as the table of contents

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